Immigration laws have changed repeatedly during nearly 500 years since the Spanish explorer Coronado became the first person on record to use Choctaw words to reference the land of red – humma – people – okla. In recent years, America’s 46th state has gained a reputation as being among the toughest states with regard to immigration enforcement.

Because immigration enforcement in Oklahoma can be so strict, immigrants involved with the legal system need to be aware of state and federal immigration enforcement mechanisms. Some Oklahoma jurisdictions are among those most willing to cooperate with federal immigration officials. Oklahoma also has its own unique immigration laws, in particular the infamous HB 1804 of 2007, which requires jailers to investigate the citizenship status of inmates detained on felony or DUI charges.

Expansive immigration enforcement provisions of HB 1804 reach far beyond the criminal justice system. State agencies in Oklahoma must verify citizenship status of those applying for most public benefits. Public employers must verify federal employment status of new employees. A Tulsa immigration attorney will review the case law that struck down parts of HB 1804 – the Oklahoma Taxpayer and Citizens Protection Act of 2007 – in another article.

ICE Detainers and Oklahoma Immigration Enforcement

Oklahoma’s HB 1804 sets a high standard for state cooperation with federal immigration enforcement, but a federal law passed 11 years earlier already encouraged local jails to cooperate with federal immigration officials. Congress’ Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorized federal immigration enforcement agents to ask state or local authorities to hold suspected non-citizens for 48 hours beyond a scheduled release time.

They are called ICE detainers, or ICE holds. Strictly speaking, an ICE detainer is a signed document titled I-247. The I-247 detainer asks state or local officials to detain a suspected non-citizen for 48 hours past the time the person would otherwise be released from police custody, a jail or a prison. The purpose of the ICE hold is to allow federal immigration agents time to take the person into federal custody for immigration enforcement actions.

Unlike a criminal detainer authorizing enforcement of an out-of-state warrant, an I-247 form that authorizes an ICE hold does not require local authorities to keep a person in custody. An ICE hold is merely a request, albeit a request with which local authorities most often comply.

Immigration officials may only issue an ICE hold if a person is suspected of being deportable. In some cases, an immigration attorney might persuade ICE the person is in no way deportable and win their immediate release.

An ICE hold may be issued at any time a person is in custody, but only takes effect when a person is scheduled for release. Jailers might try to game the clock by not accepting bail payments, or claiming the 48-hour period starts when they receive the document – after a person is otherwise set for release.

Anytime a person is held on an ICE detainer more than 48 hours – plus weekends and holidays – a person should immediately contact an Oklahoma Immigration attorney. For a free ICE hold consultation, call Wirth Law Office’s Tulsa immigration lawyer at (918) 879-1681.

The Arsenal of Local ICE Enforcement Programs

ICE detainers are only part of the way local officials cooperate with federal immigration officials. Under another federal immigration program, dubbed S-Comm for “secure communities,” local authorities systematically send to federal immigration officials fingerprints of persons detained in county jails. That fingerprint information can alert ICE officials to a suspected immigration violation and trigger an ICE hold.

Another program, dubbed 287(g) based on the authority of the Immigration and Nationality Act Section 287(g), allows state and local police to be deputized in immigration enforcement delegated by federal immigration officials. Under the 287(g) program, local police may question inmates about immigration status. Tulsa County Sheriff’s Office was among 36 law enforcement agencies nationwide with 287(g) agreements in place as of August, 2013.

Another federal immigration enforcement program at work in local jails is called the Criminal Alien Program. Like Oklahoma’s HB 1804, the federal program encourages jailers to get information about inmates’ immigration status. Typically, that information can include questions about where an inmate was born. Nobody is required to tell jailers or police where they were born, but refusal to answer questions can result in higher bail amounts.

Judges May Not Investigate Immigration Violations

“Certainly a judge may ask questions which are relevant to the issue at hand, but a judge may not investigate, from the bench, any possible violations of law which are not the subject of the case or controversy before the court.”

— Oklahoma Court of Criminal Appeals

In Ochoa v. Bass, 2008 OK Cr. 11, the Oklahoma Court of Criminal Appeals considered whether judges may question defendants about immigration status. In all but narrow circumstances, judges do not have authority to interrogate defendants about immigration status. One time they do have authority to ask immigration questions is prior to sentencing.

Ochoa v. Bass came before the criminal appeals court after District Judge Jerry Bass had questioned the immigration status of two defendants who appeared in his court for sentencing on unrelated crimes. Bass cited the newly adopted HB 1804. Attorneys immediately filed applications for a writ of habeas corpus.

The criminal appeals court found Judge Bass had no obligation and no authority under Oklahoma’s HB 1804 to question defendants’ immigration status. Nor did the judge have authority under HB 1804 to order the defendants’ arrest for suspected immigration violations, the appeals court concluded. The Oklahoma Court of Criminal Appeals state:

“While it may seem inappropriate to release illegal immigrants and thereby indirectly permit them to continue in their illegal status, there is no independent state authority allowing Petitioners’ continued state detention.”

Nonetheless, an Oklahoma judge has limited authority to order a person arrested for crimes unrelated to a case pending before the judge. Another Oklahoma law – Okla. stat. tit. 22 § 201 – allows judges to order the arrest of a person who commits a public offense in the judge’s presence. Judges may order the arrest of a person in their courtroom for crimes unrelated to a pending case, but they may not investigate unrelated crimes from the bench. In Ochoa v. Bass the court wrote:

“Certainly a judge may ask questions which are relevant to the issue at hand, but a judge may not investigate, from the bench, any possible violations of law which are not the subject of the case or controversy before the court.”

If an Oklahoma judge asks legitimate immigration questions during a sentencing hearing and discovers the defendant is likely in violation of immigration law, the judge may order the persons’ arrest, the appeals court concluded.

Judges’ Immigration Questions Can Be Imprudent

Occasions when a judge may legitimately question a person about immigrations status according to the findings of Ochoa v. Bass are limited. The defendants in that case were in court for sentencing. Even then, the criminal appeals court found that “while a trial judge may ask questions about citizenship status at sentencing, a trial judge probably ought not to ask such questions.”

Numerous problems can arise from judge’s asking defendants about citizenship status. When a defendant is questioned about immigration status, if the defendant is not advised of Miranda rights, federal enforcement could be undermined.

To question a defendant who is in court for sentencing under an agreement to cooperate with prosecutors in another case could undermine that other case. The cooperation agreement might even include a promise to ignore immigration status, which would be moot if a judge asks about citizenship.

And contrary to the original notion in HB 1804 that an unauthorized immigrant charged with a crime poses a flight risk, a person taken into federal custody on immigration violations might be deported. Deportation could undermine the Oklahoma court’s capacity to impose a sentence, the appeals court wrote. The 48-hour ICE hold rule limits how long a jail can keep an unauthorized immigrant in custody after they have been arrested.

The ICE Hold 48-Hour Clock

The authority under which Oklahoma law enforcement or corrections agencies may hold a person suspected of federal immigration violations relies on the ICE detainer program. Under that authority, a person may be held an additional 48 hours past the time they otherwise would be released. The 48 hour clock does not include weekends or federal holidays, so potentially a person could be held five days – two weekend days, a Monday holiday and the 48 hours ICE hold period.

The I-247 document may be submitted at any time while a person is in custody, but the 48-hour clock starts the moment the person would otherwise be released. In many cases, that means 48 hours – plus weekends or holidays – from the time the person posts a bond payment. It could also mean 48 hours from the time a person would be released after serving a sentence in county jail or state prison.

ICE itself recommends citizens or lawful immigrants improperly held under an ICE detainer contact ICE, or have their attorneys contact ICE. Victims of a crime held on an ICE detainer may also be afforded consideration by contacting an ICE hotline.

A person who calls the a law enforcement hotline without an understanding of their legal position could potentially be exposed to additional enforcement consequences. If you are uncertain about your own or a family member’s immigration status, contact a Tulsa criminal defense and immigration attorney at (918) 879-1681.

County Jail or Deportation?

There are circumstances where a criminal case and immigration cases overlap. Immigration officials in Oklahoma generally wait until a criminal case is completed to initiate immigration actions. Immigration officials might have their own ideas about when a criminal case ends. In some cases, a person who withdraws a plea in a criminal case after learning of immigration implications may be moved into ICE custody before they have a chance to appear for appeal hearings.

Non-citizens with lawful immigration status may be at risk of deportation during a criminal proceeding. A guilty plea, a criminal conviction or even a deferred sentence agreement without a guilty plea can change immigration status. Immigration officials may issue an I-247 ICE hold while proceedings are pending, anticipating that the person’s status may change.

In a 2010 U.S. Supreme Court case, Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), the court determined that defense attorneys must advise clients that their may be immigration consequences to their plea.

Free Consultation: Tulsa Immigration Attorney

If you or a family member who is in custody has been named in an 1-247 ICE hold, immediately contact an Oklahoma immigration attorney. If you have been questioned in court about your immigration status, or you accepted a plea agreement that affected your immigration status, contact an immigration lawyer as soon as possible.